Opinion
16-P-210
03-08-2017
COMMONWEALTH v. Michael A. MASSARO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant, Michael A. Massaro, was convicted of violating a harassment prevention order. On appeal, he argues that the evidence was insufficient to prove an essential element of the crime: his knowledge of the existence of the order on the day of the alleged violation. We are constrained to reverse the judgment.
Because of our disposition of the case, we do not address the defendant's claims of procedural error in the issuance of the criminal complaint.
Discussion . To sustain a conviction of a violation of a G. L. c. 258E order, as with a violation of a G. L. c. 209A order, the Commonwealth must prove beyond a reasonable doubt that "the defendant had actual or constructive knowledge of the existence and terms of the court order." Commonwealth v. Molloy , 44 Mass. App. Ct. 306, 308 (1998), citing Commonwealth v. Delaney , 425 Mass. 587, 592 (1997). At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on the ground that the Commonwealth failed to prove notice. The judge denied the motion, and a guilty finding was entered.
The victim obtained a temporary order ex parte on January 14, 2014. The defendant was present in court on January 28, 2014, for the full hearing on the victim's G. L. c. 258E application and was served in hand with a copy of the one-year extension order issued on that date (the 2014 order). The 2014 order expired on January 27, 2015, when the next hearing date was scheduled. The defendant did not violate the 2014 order.
On January 29, 2015, the 2014 order was extended through January 28, 2016 (the 2015 order). The defendant was not present for the hearing and was not served with a copy of the 2015 order (until nearly eight months later when he was arraigned for having violated it). When, on September 21, 2015, he was arrested for being within three yards of the victim's work place, and the officer asked whether anyone inside the building had an active harassment prevention order against him, he replied, "It had expired."
The Commonwealth, relying on Commonwealth v. Henderson , 434 Mass. 155 (2001), and Commonwealth v. Olivo , 369 Mass. 62 (1975), argues that although the defendant was never served with the 2015 order, he had constructive knowledge of its existence. Given the defendant's history with the victim and his receipt of the 2014 order, the Commonwealth maintains that the defendant should be charged with knowledge of the 2015 order because "[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop." Commonwealth v. Welch , 58 Mass. App. Ct. 408, 410 (2003), quoting from Olivo , supra at 69.
We disagree. Notice of a hearing on the extension of a temporary order has been held sufficient to put defendants on inquiry notice of the outcome of that hearing. See Delaney , supra at 591-593; Henderson , supra at 161-163; Commonwealth v. Kulesa , 455 Mass. 447, 453 (2009) ; Commonwealth v. Munafo , 45 Mass. App. Ct. 597, 602 (1998). "No similar result obtains with successive annual extensions." Molloy , 44 Mass. App. Ct. at 308. See Munafo , supra (distinguishing Molloy because it "concerned notice of the extension of an annual order, not of a temporary order, as is the case here"). "The extension of an annual order ..., in contrast to ... continuation of a temporary order, is ... by no means automatic, even if a defendant fails to appear." Molloy , supra at 309.
The facts of Olivo are inapposite. There, the defendant was held to be on inquiry notice when he was served in hand with a copy of the order that he violated—although it was in English and he spoke only Spanish—and was then visited four times by an inspector who tried to explain the order to him. Olivo , 369 Mass. at 63, 67-68.
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As in Molloy , "[t]he last thing the defendant could be held to have known was that he could have no contact with [the victim] pursuant to a court order that expired on [January 28, 2015]." Ibid . The evidence failed to establish that the defendant had actual or constructive knowledge of the existence or terms of the 2015 order, which he was charged with violating. The defendant's motion for a required finding of not guilty should have been allowed.
Judgment reversed .
Finding set aside .
Judgment for the defendant .